Serbia Justice Functional Review

Internal Performance Assessment > Governance and Management

a. Governance and Management of Justice Institutions

The judiciary is more than a collection of individual judges resolving cases in accordance with the law. The judiciary is an organization and so requires a mechanism to oversee its performance, plan improvements, set guidelines, and ensure that financial and other resources are used most effectively and efficiently. In this Chapter, the terms ‘governance and management’ are used to emphasize two related but somewhat different functions:

Governance: decision-making at the highest level to set policies, guidelines, rules, targets, and plans.

Management: the implementation of decisions in an institution’s day-to-day operations, and the provision of information and analysis to support the governance body’s deliberations.

Governance and management should enable judges to carry out their work effectively and efficiently. Governance and management should not interfere with the judges’ decision-making ability or otherwise submit them to undue influence. However, governance and management are vital in ensuring that judges work in adequate conditions and remain motivated to perform impartially, fairly, and without unnecessary delay. The aim is to create an enabling environment that encourages performance. These same general principles apply to other sector institutions, particularly in prosecution, defense, police, and prisons.

Over time, the institution responsible for justice sector governance and management has varied across countries. Historically, the Executive performed these functions through the MOJ or similar departments. The apparent contradictions between this situation and the principle of judicial (and to some extent prosecutorial) independence have recently been recognized. This recognition produced a tendency to transfer both activities to a Judicial Council or to the SCC.597 It should be emphasized that the highest court retains its jurisdictional functions.598

Governance and management are the two interrelated functions essential to organizational performance. Governance bodies set the policies and guidelines, and management organizations implement them, and in the modern era, do the monitoring and analysis needed to inform governance decisions.

Wherever governance functions are located,599 they require a professional management unit to
carry out day-to-day administrative work. Governance increasingly involves tracking and analyzing system performance, identifying problems, proposing remedies and all that is needed to support the governance body’s deliberations. Council members or the SCC operate much like corporate boards of directors and oversee without directly engaging in managerial work. Without well-organized management units, the governance bodies (whose members are rarely managers) will be unable to operate effectively, will lack information on internal operations, and be uncertain as to whether their decisions are correctly implemented. Also, emerging problems
may go undetected and proposed remedies will be insufficiently analyzed.

A core task for governance and management bodies is to ensure the appropriate quality and quantity of system resources to optimize performance. Once governance bodies set general rules and policies, the bodies’ management staff carries out the day-to-day implementation. The management offices then prepare and execute budgets, and agree on the mix of human resources, ICT, and infrastructure resources. Management offices recruit, vet, and sometimes select personnel or handle other human resource matters; and they also procure materials and equipment, and, in some systems, oversee capital investment.

Modern management includes additional dimensions, most significantly the optimization of the distribution and mix of all inputs. In Serbia, the provision of resources depended on history and tradition as legislation drafted years or decades ago influenced the distribution of judges or the staff-to-judge ratio. In the face of reformed procedures, old formulas are decreasingly relevant with the prospect that new demands and technological advances bring. Nonetheless, innovation in the sector is often constrained by rigid rules, bifurcation of responsibilities between organizations, and an overall system that does not encourage new ways of improving old practices.

Human resources often pose challenging issues for legal, technical, and political reasons. The immovability of judges and prosecutors exists in most continental systems. As suggested by the CCJE, more flexibility in placements is desirable so long as it does not violate the independence of individual judges.600 In recent years, several systems found flexible ways of reassigning judges to where they are most needed, for instance by creating incentives for judges to consent to transfer, or to require experience in more than one court or on certain projects as a criterion for promotion. What once made sense when transportation and communication were difficult no longer holds, and transfer to a ‘removed’ location does not entail the hardships it once did. In modern judiciaries, mobility is often encouraged and incentivized as it builds experience, collegiality, and consistency of practice. For example, experience in more than one court could be considered desirable (or even a pre-requisite) in promotion applications. Judges may be asked to act as substitute judges in nearby courts within the same appellate jurisdiction, and will often agree. Financial incentives can further encourage judges to consent to transfer. For court staff, automation has altered the nature of their work and the skills needed to perform. To be in line with these changes, there is a need for adjustments to position descriptions and performance expectations.

Modern governance and management also call for the modification of work processes and practices for greater efficiency. The changes needed may be of an organizational nature, such as establishing specialized units to process certain types of cases and so improve the access and quality of service delivery for users. For example, streamlined small claims procedures can accelerate case processing while providing services that are more appropriate to users. Many countries with new criminal procedure codes adopt both specialized judicial and prosecutorial divisions for financial crimes and create units to process simpler cases. Some modifications may be technological,601 and simplification may consist in establishing means to join similar disputes involving the same defendant and plaintiff, or limiting the potential for party abuses.602 These changes in procedures and practices have been among the most successful in enhancing efficiency, but only when they have been carefully analyzed and tested.

A traditional administration focuses on organizational housekeeping. Modern management adds a forward-looking approach emphasizing planning, evidence-based analysis, and alternative scenarios to help governance bodies adjust organizational performance to the changing conditions and needs.

Finally, governance and management bodies are increasingly forward-looking, attempting to
project new needs and define the resources required to meet them. Useful projections go beyond a simple extrapolation of past trends, requiring anticipation of how these trends will change. Rapid societal development may increase or decrease court use, but will inevitably alter the nature of demand. For example, Internet penetration could transform justice service delivery in the medium term if harnessed properly, and governance bodies may ask their management units to track these trends and anticipate how well current practices will deal
them.603